BURKE v. PRUDENTIAL INSURANCE COMPANY OF AMERICA

The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This case is before the Court on Plaintiff Brenda Burke's motion for
sanctions.*fn1 For the reasons set forth below, the Court finds that
Plaintiff's motion should be granted in part and denied in part.

I. Background

Plaintiff filed this action against Defendant Prudential Insurance
Company of America alleging that Prudential has denied her the long term
disability benefits that she is entitled to under a policy issued by
Prudential to AON Corporation, Plaintiffs former employer. The disability
policy excludes any disability that is caused even partially by a
psychological problem, except for the first 24 months of disability.
Prudential claims that the 24 month benefit limitation applied to
Plaintiff and that it did not pay Plaintiff beyond the 24 months because
she no longer met the qualifications for benefits under the policy.
Page 2

On March 12, 2003, Plaintiff propounded discovery requests on
Prudential. Prudential responded on April 23,*fn2 but some of its
responses noted: "Prudential repeatedly requested that Plaintiff pro vide
psychiatric medical records and history and to date, Plaintiff has failed
to comply." (E.g. Prudential Resp. to Interrog. No. 6.)
Prudential also objected to "the form of Interrogatory No. 8 [and 9] in
that Prudential did not deny Plaintiffs claim, rather, Plaintiff's 24
month Initial Duration expired." The text of the disputed interrogatories
will be set forth in the Discussion section below.

On May 21, Plaintiff sent a letter to Prudential detailing the
incompleteness of its responses, and Prudential responded by producing
claim notes entries. Next, and of significance to our analysis, Plaintiff
sent another letter to Prudential seeking more information on June 20.
The letter conceded, with respect to the disagreement over the word
"deny," that "it is clear from the nature of this dispute and the
discovery propounded upon Prudential that the plaintiffs are referring to
Prudential's decision to rely upon the `mental, psychoneurotic or
personality disorder" exclusion, which is clearly set forth in
Prudential's October 18, 2001, letter."

Prudential responded seven days later and produced documents relating
to its policies regarding Social Security benefit offsets. It also
reiterated its position that "Prudential did not deny benefits in this
case, rather, based on Plaintiff's failure to cooperate in producing her
psychological records, Prudential had no other alternative but to
determine that Plaintiff no longer met the qualifications under the
plan."

On My 15, 2003, Plaintiff filed motions to extend discovery, to compel,
and for sanctions. The parties appeared before Judge Grady on July
23, 2003, who instructed them to
Page 3
meet and work out the discovery issues together. After the parties
met in early August, Prudential sent Plaintiff a letter reminding her
that she was supposed to memorialize the substance of their meeting. Two
days later, on August 28, Plaintiff sent an e-mail to Prudential which
reiterated again what discovery was still incomplete. Prudential sent a
letter to Plaintiff informing her that "investigation continues" on
September 9th.

Finally, on October 3, a few days before the parties were scheduled to
appear for status in front of this Court, Prudential further supplemented
its answers to the interrogatories and provided an Affidavit of
Completeness that was (inexplicably) dated September 9.

This Court heard oral argument on the motion for sanctions (the motion
to extend discovery having been granted and the motion to compel having
been terminated as moot). The parties were given the opportunity to
additionally brief this issue after the oral argument and have provided
supplemental briefs.

II. Discussion

Plaintiff asks this Court for sanctions against Prudential for its
failure to respond to discovery which necessitated the motion to compel.
Pursuant to Federal Rule of Civil Procedure 37(a)(4)(A), if a motion to
compel is granted, or the nonmoving party produces the information sought
after the motion to compel is filed, the moving party may be awarded
reasonable expenses, including attorney's fees, incurred in bringing the
motion. The motion for sanctions will be granted unless the moving party
failed to make a good faith effort to obtain the information without
court action. Fed.R.Civ.P. 37(a)(4)(A). The nonmoving party may also
avoid the sanctions if its position was "substantially justified, or that
other circumstances make
Page 4
an award of expenses unjust." Fed.R.Civ.P. 37(a)(4)(A); see
also Rickels v. City of South Bend, 33 F.3d 785, 787 (7th Cir. 1985)
(noting that Rule 37(a)(4) is a fee-shifting rule and the victor is
entitled to fees and expenses). If the motion to compel is granted in
part and denied in part, the court may apportion the reasonable expenses
in a just manner. Fed.R.Civ.P. 37(a)(4)(C).

The non-moving party cannot avoid sanctions by producing the
information after the motion to compel is filed. Illinois Tool Works,
Inc. v. Metro Mark Prods., Ltd., 43 F. Supp.2d 951, 960 (N.D. Ill.
1999). Instead, it bears the burden of proving that its initial position
was substantially justified. Rickels, 33 F.3d at 787. If the
nonmoving party cannot show this, then the moving party is entitled to
reasonable incurred costs and fees that were the product of the nonmoving
party's failure to provide the requested information and the resulting
motion practice. Illinois Tool Works, 43 F. Supp.2d at 962.

We first note that Plaintiff made the requisite good faith effort to
resolve the discovery disputes without court intervention. She sent
various letters detailing what she believed was inadequate about
Prudential's answers to the interrogatories. We agree with Plaintiff that
Prudential's dispute over Plaintiffs use of the word "denial" was merely
a question of semantics. This Court agrees with Plaintiff that where an
insurance company fails to pay that which a claimant requests, it has
denied a claim. And, if there is any legal significance of this term by
statute or case law that would justify Prudential's disagreement over
this word, Prudential has not brought it to the Court's attention.

Regardless, Plaintiff even agreed (in its June 20, 2003 letter), prior
to appearing in front of Judge Grady, and prior to filing the motion to
compel, that Prudential should interpret the term
Page 5
"deny" as Prudential's position regarding Plaintiff's claim as it
was expressed in Prudential's October 18, 2001 letter to Plaintiff.*fn3
Prudential had no reason to continue to refuse to produce the information
based on Plaintiff's use of the terms "deny" and "denial." Its position
was not substantially justified.*fn4

We can also see no reason why Prudential did not start gathering
information after the parties met in early August. Although Prudential
claims that it was waiting on Plaintiff to provide a letter summarizing
their discussions, its representatives were present at the meeting and
agreed what would be produced. Prudential could have started its
investigations sooner than it did. It wasn't until September 9 that it
sent a letter to Plaintiff indicating that "investigation continues," and
not until October 3 that it provided the requested information.

We will examine each of the contested interrogatories in turn to
determine how much information Prudential actually failed to provide.
Page 6

A. Interrogatory No. 2

Interrogatory No. 2 states: "Identify the documents relied upon by
Prudential in support of its position asserted in Prudential's October
18, 2001, letter attached hereto as Exhibit A." Prudential first
responded on April 23, 2003, as follows:

Subject to and without waiving objections made
above, Prudential will produce all documents in
its custody, possession, and control that are
responsive to this request.

After discussion between the parties, Prudential amended its
response on October 3 as follows:

Prudential relied on the totality of its record as
it existed prior to October 18, 2001. This record
included, but is not limited to, Plaintiffs
medical records, Prudential's SOAP Notes, and
Prudential's Telephone Call Log. All of the
documents that Prudential relied on in its October
18, 2001 letter have been previously produced to
Plaintiff.

Prudential supplemented its responses on May 28 by producing claim
notes entries. It did not subsequently significantly amend Interrogatory
No. 2 after Plaintiff's motion to compel was filed on July 15. It does
not appear that Prudential unduly delayed or incompletely responded to
this interrogatory. Therefore, sanctions are not warranted for
Prudential's answers to Interrogatory No. 2.

B. Interrogatory No. 6

Interrogatory No. 6 states: "Identify all persons at Prudential who
were involved in any way in Prudential's decision to deny disability
benefits to Plaintiff." Prudential first responded on April 23, 2003,
as follows:

Prudential objects to the form of Interrogatory
No. 6 in that Prudential did not deny Plaintiffs
claim, rather, Plaintiffs 24 month Initial
Duration expired. Answering further, Prudential
repeatedly requested that Plaintiff provide
psychiatric medical records and history and to
date, Plaintiff has failed to comply.
Page 7

Additionally, the persons who participated in
handling Plaintiff's claim are disclosed in the
documents to be produced by Prudential.

After discussion between the parties and Plaintiffs motion to
compel was filed, Prudential supplemented its response on October 3,
2003, as follows:

Prudential states that Plaintiff has clarified the
language of this interrogatory such that it seeks
the identification of persons at Prudential who
were involved in the decision that Prudential's 24
month benefit limitation applied to Plaintiff.
Answering further, Prudential states that the
following persons were involved in that decision:
[7 employees identified by name and position in
the company].

The Court agrees that Prudential's initial response to Interrogatory
No. 6 was incomplete. As Prudential acknowledged, the failure of the
parties to agree to a protective order regarding Plaintiff's psychiatric
records is not relevant to Plaintiff's motion, (Prudential Resp. to
Plf.'s Mot. at 10), just as it was not relevant to Prudential's responses
to Plaintiffs interrogatories. Prudential cannot withhold discovery
merely because it believed that Plaintiff had not provided all of her
psychiatric medical records. Self-help in litigation is not condoned by
the courts.

Furthermore, Prudential produced many documents, and it was
unreasonable for it to expect Plaintiff to sort through all the documents
in order to speculate as to who were the key players in Prudential's
decision regarding Plaintiffs benefits. The instructions to the
interrogatories defined "identify" when used in connection with a natural
person as providing "his or her full name, present or last known business
and home address and business and home telephone numbers, job title, and
to state the relationship, business or otherwise, between such person and
the person answering the interrogatory." Prudential should have provided
the full names as instructed, rather than just a stack of documents
(which may or may not have included these people's names), and should
have indicated if the person was no longer employed at Prudential. It
failed to comply with these instructions until October 3, and did not
bother to
Page 8
inform Plaintiff earlier that one of the seven was no longer
employed by Prudential, and that another person was on maternity leave
until November.

Prudential could have answered this interrogatory sooner, and its
failure to do so until after the motion to compel was filed hindered
Plaintiffs ability to proceed with the case. Prudential's argument that
it previously identified five of the seven people in its response to
Interrogatory No. 4 only further supports the Court's conclusion that
Prudential deliberately delayed discovery. If it knew the identities of
five of the seven people it should have provided that information back in
April, and supplemented its response as soon as it knew the other two
people. Prudential's position was not substantially justified, and
therefore sanctions are warranted for its failure to adequately respond
to Interrogatory No. 6.

C. Interrogatories Nos. 8 and 9

The responses to Interrogatories Nos. 8 and 9 are substantially the
same, so they will be discussed together. Interrogatory No. 8 states as
follows: "Identify the date on which Prudential first considered denying
Plaintiff's claim for disability benefits." Interrogatory No. 9 states as
follows: "Identify the date on which Prudential internally made the
decision to deny Plaintiff's claim for benefits under the Prudential
policy," Prudential's original response was:

Prudential objects to the form of [Interrogatories
8 and 9] in that Prudential did not deny
Plaintiff's claim, rather, Plaintiff's 24 month
Initial Duration expired. Answering further,
Prudential repeatedly requested that Plaintiff
provide psychiatric medical records and history
and to date, Plaintiff has failed to comply.

After discussion between the parties and Plaintiff's motion to
compel was filed, Prudential supplemented its response to Interrogatory
No. 8 in October as follows:
Page 9

Prudential states that Plaintiff has clarified the
language of this interrogatory such that it seeks
the date on which Prudential first determined that
its 24 month benefit limitation would apply to
Plaintiff. Answering further, Prudential states
that while it is not possible to identify a
specific date on which Prudential "first"
considered this decision, it appears that on May
22, 2001 Brian Fuller documented that it was more
likely than not that the benefit limitation would
apply. This determination was communicated to
Plaintiffs attorney in a telephone call on July
11, 2001 and in written form on October 18, 2001.
While previously produced, attached hereto are
Prudential's May 22, 2001 SOAP Note and June 11,
2001 Telephone Log, documenting these matters.

Its supplemented response to Interrogatory No. 9 was as follows:

Prudential states that Plaintiff has clarified the
language of this interrogatory. . . . Answering
further, Prudential states that while a specific
date is impossible to identify, it appears that on
May 22, 2001 Prudential representative, Brian
Fuller, determined that it was more likely than
not that Prudential's benefit limitation would
apply. While already produced, attached hereto is
Prudential's SOAP Note from May 22, 2001.

Again, Plaintiff's alleged failure to provide psychiatric and medical
records has no bearing on Prudential's responsibility to provide the
requested information. Furthermore, on June 20, Plaintiff agreed that
"deny" referred to Prudential's position as set forth in its October
18, 2001 letter. Prudential had ample opportunity to answer this
interrogatory, and its failure to do so was not substantially justified.
The parties met at the beginning of August, and came to an agreement as
to what information would be produced. Even if Plaintiff waited until
August 26 to memorialize their discussions, Prudential could have
supplemented its response sooner than October 3. There seems to be no
reason why it took all of September to "investigate" this fairly
straightforward question and answer. Sanctions are warranted for
Prudential's failure to respond to Interrogatories Nos. 8 and 9 until
after the motion to compel was filed.
Page 10

III. Conclusion

For the foregoing reasons, the Court grants Plaintiff's motion for
sanctions in part and denies Plaintiffs motion in part. Plaintiff is
directed to file a fee petition for expenses incurred in filing her
motions and expenses in relation thereto, within 21 days of the date of
this order, taking into account the fact that the Court granted her
motion for sanctions for three of the four interrogatories.

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